B-128222, JUL. 9, 1956

B-128222: Jul 9, 1956

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AS INFORMATION OFFICER OF THE BOARD REQUIRED THE SERVICES OF A SECRETARY AND SINCE HE WAS UNABLE TO SECURE ONE THROUGH THE BOARD'S PERSONNEL OFFICE. YOU STATE THAT THE BOARD IS AUTHORIZED BY LAW TO RECRUIT OUTSIDE THE CIVIL SERVICE FOR EMPLOYEES. OTHER PERSONNEL AS MAY BE NECESSARY FOR THE PERFORMANCE OF THE FUNCTIONS OF SUBVERSIVE ACTIVITIES CONTROL BOARD ARE SUBJECT TO THE CIVIL-SERVICE LAWS AND CLASSIFICATION ACT OF 1949. IT IS UNDERSTOOD. THAT AN AUTHORIZATION FOR YOUR AGENCY TO RECRUIT OUTSIDE THE CIVIL SERVICE WAS OBTAINED FROM THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH THE PROCEDURE. TO FILL COMPETITIVE POSITIONS FOR WHICH THERE ARE NO ADEQUATE CIVIL SERVICE REGISTERS AVAILABLE.

B-128222, JUL. 9, 1956

TO MR. ARTHUR A. KICSAR, AUTHORIZED CERTIFYING OFFICER, SUBVERSIVE ACTIVITIES CONTROL BARD:

YOUR LETTER OF JUNE 11, 1956, REQUESTS A DECISION AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER, TRANSMITTED THEREWITH, IN FAVOR OF WALTER FITZMAURICE, COVERING REIMBURSEMENT OF A PAYMENT MADE BY HIM TO THE WASHINGTON POST FOR A CLASSIFIED ADVERTISEMENT ORDERED BY HIM. MR. FITZMAURICE, AS INFORMATION OFFICER OF THE BOARD REQUIRED THE SERVICES OF A SECRETARY AND SINCE HE WAS UNABLE TO SECURE ONE THROUGH THE BOARD'S PERSONNEL OFFICE, THE CIVIL SERVICE COMMISSION, VARIOUS AGENCIES OF THE ARMED SERVICES, OR THROUGH PRIVATE EMPLOYMENT AGENCIES, HE PLACED AN ADVERTISEMENT IN THE CLASSIFIED SECTION OF THE NEWSPAPER AT A COST OF $7.80. HE NOW SEEKS REIMBURSEMENT OF THAT AMOUNT.

YOU STATE THAT THE BOARD IS AUTHORIZED BY LAW TO RECRUIT OUTSIDE THE CIVIL SERVICE FOR EMPLOYEES. SECTION 12 (F) OF THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950, 64 STAT. 997, 50 U.S.C. 791 (F), PROVIDES THAT APPOINTMENTS OF THE CHIEF CLERK, EXAMINERS, AND OTHER PERSONNEL AS MAY BE NECESSARY FOR THE PERFORMANCE OF THE FUNCTIONS OF SUBVERSIVE ACTIVITIES CONTROL BOARD ARE SUBJECT TO THE CIVIL-SERVICE LAWS AND CLASSIFICATION ACT OF 1949. THOSE POSITIONS EXCEPTED FROM THE COMPETITIVE SERVICE PURSUANT TO SECTION 2 OF REVISED STATUTE 1753, 22 STAT. 403, 5 U.S.C. 631, 633, AND DESIGNATED AS SCHEDULE C APPOINTMENTS, WHICH APPEAR IN 5 CFR 6.353, DO NOT INCLUDE A SECRETARY FOR AN INFORMATION OFFICER. IT IS UNDERSTOOD, HOWEVER, THAT AN AUTHORIZATION FOR YOUR AGENCY TO RECRUIT OUTSIDE THE CIVIL SERVICE WAS OBTAINED FROM THE CIVIL SERVICE COMMISSION IN ACCORDANCE WITH THE PROCEDURE, ESTABLISHED PURSUANT TO SECTIONS 2.302 (A) AND (B) OF THE CIVIL SERVICE REGULATIONS, BY SECTION 3, X-1-17 OF THE FEDERAL PERSONNEL MANUAL, TO FILL COMPETITIVE POSITIONS FOR WHICH THERE ARE NO ADEQUATE CIVIL SERVICE REGISTERS AVAILABLE. IN GRANTING THIS AUTHORITY, THE CIVIL SERVICE COMMISSION PRESCRIBES PROPER RECRUITING METHODS FOR THE AGENCY TO FOLLOW. IT SPECIFICALLY PROHIBITS THE USE OF PAID NEWSPAPER ADVERTISEMENTS BY THE AGENCY. SEE X-1-18. IN VIEW OF THIS DIRECT PROHIBITION, IT DOES NOT APPEAR THAT YOUR AGENCY IS AUTHORIZED TO MAKE USE OF PAID ADVERTISEMENTS IN OBTAINING PERSONNEL UNDER THIS REGULATION.

IN ADDITION, REFERENCE MUST BE MADE TO SECTION 3828, REVISED STATUTES, 44 U.S.C. 324, IN ANY MATTER CONCERNING THE USE OF NEWSPAPER ADVERTISEMENTS. THIS SECTION PROVIDES:

"NO ADVERTISEMENT, NOTICE, OR PROPOSAL FOR ANY EXECUTIVE DEPARTMENT OF THE GOVERNMENT, OR FOR ANY BUREAU THEREOF, OR FOR ANY OFFICE THEREWITH CONNECTED, SHALL BE PUBLISHED IN ANY NEWSPAPER WHATEVER, EXCEPT IN PURSUANCE OF A WRITTEN AUTHORITY FOR SUCH PUBLICATION FROM THE HEAD OF SUCH DEPARTMENT; AND NO BILL FOR ANY SUCH ADVERTISING, OR PUBLICATION, SHALL BE PAID UNLESS THERE BE PRESENTED, WITH SUCH BILL, A COPY OF SUCH WRITTEN AUTHORITY.'

WE HAVE CONSISTENTLY CONSTRUED THIS STATUTE TO REQUIRE A WRITTEN AUTHORIZATION IN ADVANCE AS A CONDITION PRECEDENT TO THE CREATION OF AN OBLIGATION AGAINST THE UNITED STATES. SEE 35 COMP. GEN. 235. IT DOES NOT APPEAR THAT THE REQUIRED ADVANCE WRITTEN AUTHORIZATION WAS OBTAINED IN THIS CASE. FURTHERMORE, THE RULE IS WELL ESTABLISHED THAT, EXCEPT FOR CERTAIN PERSONAL SERVICES SUCH AS DULY AUTHORIZED TRAVEL EXPENSES, PAYMENTS MUST BE MADE DIRECTLY TO THE PUBLIC CREDITOR BY AN AUTHORIZED DISBURSING OFFICER OF THE UNITED STATES OUT OF PUBLIC FUNDS AND THAT NO OFFICER OR EMPLOYEE OF THE GOVERNMENT CAN CREATE A VALID CLAIM IN HIS FAVOR BY PAYING OBLIGATIONS OF THE UNITED STATES FROM HIS OWN FUNDS. SEE 24 COMP. DEC. 155, 2 COMP. GEN. 581, 7 ID. 104, 18 ID. 424, 425; 33 ID. 20.

ACCORDINGLY, THE VOUCHER, WHICH IS HEREWITH RETURNED, MAY NOT BE CERTIFIED FOR PAYMENT.